Employment Law Cases

R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions

‘Workers’ and not just employees should have protection from being subject to detriments on health and safety grounds and the right to be provided with PPE.

Background

The Independent Workers’ Union of Great Britain (IWUGB) has roughly 5,000 members, principally low-paid workers in the so-called ‘gig economy’ and who are classed as limb b workers in the UK rather than employees. Its members had raised concerns about not being given necessary PPE by their employers. They also run the risk of having their engagements suspended or terminated if they take steps to protect themselves by stopping work when faced with the serious and imminent danger of being exposed to COVID-19 at work. Employees on the other hand have a raft of health and safety protections in UK derived from EU law, including the right to stop work when faced with serious and imminent danger at work (Employment Rights Act 1996. s 44 and 100) and benefit from an obligation on their employers to provide them with the necessary PPE (reg. 4(1) of the Personal Protective Equipment at Work Regulations 1992).

The IWUGB brought a judicial review claim seeking declarations that the UK has failed properly to transpose into domestic law two EU directives - the Framework Directive and the PPE Directive. IWUGB argued that the directives required member states to confer health and safety protection on workers, whereas UK legislation only protected employees.

The Department for Work and Pensions and the Department for Business, Energy and Industrial Strategy argued that the EU’s definition of work extends only to those ‘employed by an employer’ which had properly been transposed into domestic law. They also said that there are other forms of protection in the UK for workers who are not employees that meet the EU’s minimum standards, even if they are not identical.

High Court decision

Following an exhaustive review of the relevant EU legislation and case law, the High Court ruled in favour of the government on one of the union’s claims. It found that EU law that imposed a duty on employers to ensure the health and safety of their workers in every aspect of their work had in fact been reflected in domestic law. However, the High Court found against the government on the rest of the claim, which focused on the rights of workers to refuse to work because of a perceived danger and the use of PPE. These rights should be extended to include limb b workers.

Link to judgment: https://www.bailii.org/ew/cases/EWHC/Admin/2020/3050.html

Comment

This is an important judgment because it extends health and safety protections to all workers and not just employees, including those in the gig economy. The government may appeal but if it does not, it will have to introduce legislation to extend the scope of these protections to the broader category of ‘worker’.